Friday, 17 January 2014 08:49
By Robert Crump
Positive drug test
After several years of working for a temp agency, an employee was when they assigned him to a pet store, which required its employees to take random drug tests. The temp was chose for one of these random tests and tested positive for marijuana use. Unbeknownst to the pet store and the temp agency, the employee was HIV positive and taking a medication that could cause a false positive for marijuana. The same day he learned of the positive test, the employee obtained a note from is doctor explaining the medication he was prescribed and the possibility for a false positive. The employee never disclosed the medication at issue was for the treatment of HIV. Despite his efforts to prove he had not used marijuana, the employee was fired.
Soon after, the employee sued the temp agency for disability discrimination under the ADA, alleging he was fired for a “manifestation of a disability.” However, the Sixth Circuit sided with the agency and decided testing positive for marijuana on its own without any other reason to believe the positive test was related to a disability did not constitute a “manifestation of a disability.”
An employer can fire an employee if it honestly believes the employee was using illegal drugs. It was not clear whether there was any error in the drug test and the agency went through a thorough process where they sent the results to a medical review officer. The agency was faced with the decision of crediting the employee’s story or crediting the medical review officer’s findings. Its decision to credit the medical review officer does not support an inference of discriminatory animus. Even if the positive test was false, the employer’s false reliance on the test result does not create a claim under the ADA without a real showing that the firing was for the disability. The employee had to prove his disability caused the termination, but he had no evidence to offer because he never disclosed to the employer he had HIV.
Implications for medical marijuana
This case may have some interesting implications are the area of medical marijuana and drug testing. Medical marijuana is now legal in twenty states. There is a very real question of whether an employer can fire an employee for testing positive for marijuana even when it is legally prescribed for the treatment of a medical condition. The ADA does not cover employees who are currently under the influence of illegal drugs. Therefore, the treatment of medical marijuana under the ADA is akin to any other legally prescribed medications.
Marijuana’s emergence into mainstream culture and legality will undoubtedly lead to a slew of legal battles centered around employer drug testing. Employers may generally prohibit employees from coming to work on controlled pain medication, even when used legally. However, the handling of employees taking legal prescription medications is highly fact sensitive and legally nuanced. Accordingly, employers in those states permitting the use of medical marijuana should be wary before implementing any policies or taking any action involving the use of marijuana, just as they would for any other controlled substance.